6 Duer 702 | The Superior Court of New York City | 1857
Section 391 of the Code, gives to either party to an action, an option to have an adverse party examined before, instead of examining him at the trial. It is error to deny to the party claiming it, the right to have such an examination, on the mere ground that the party sought to be examined, prefers to be examined at the trial, and offers to stipulate to then attend, so that his examination can then be had. The fact that other suits against the party sought to be examined are pending, which are brought by other plaintiffs, and depend upon the same general facts, is not such cause as will justify an order exempting a defendant from examination before the trial. To refuse to compel a defendant to submit to an examination before the trial, merely because he prefers to be examined at the trial, would make it optional with the defendant, whether he would be examined before the trial or not, whereas the Code gives the option to the party who wishes to examine his adversary, whether the examination shall he had before or at the trial. (Reported in 15 How. Pr. R. 338.)
